UT's disciplinary hearing procedures fail students

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Photo Credit: Jeb Milling | Daily Texan Staff

A court reporter is present. The table has microphones for witnesses. All physical evidence has been reviewed and approved before the participants arrive. The person at the head of the table opens the proceedings by explaining the participant’s rights in the process. Then, they explain the order of events — opening statements, questioning, cross examinations, closings. They have the court reporter swear in the first witness. 

Although this UT procedure shares many similarities with a deposition or trial and has the ability to determine sanctions just like a court proceeding, both the Office of Student Conduct and President Gregory Fenves claim that it is not, in fact, a legal process. 

In a copy of a decision letter from a Title IX hearing appeal obtained by The Daily Texan — dated Dec. 1, 2017 — Fenves writes to the respondent that the hearing, “is not meant to mirror a court proceeding, as you seem to have assumed.” 

In the same letter, Fenves explains to the student that the University’s goal is for the disciplinary process to be educational, rather than legal. The procedures UT follows for hearings are laid out in Chapter 11 of the Institutional Rules on Student Services and Activities. 

Unfortunately, UT’s current procedures and systems are overly broad and allow a hearing officer’s personal biases to get in the way of truth-finding. 

Things can go wrong before the hearing even starts due to procedure that gives overly broad power to the hearing officer. UT procedure (section 11-604) gives the appointed hearing officer final say in scheduling the hearing. The respondent in this specific case requested the hearing be rescheduled twice. The first time, due to the impact of Hurricane Harvey on his family. According to the respondent, the hearing officer told him he could participate in the hearing over the phone. He says she later rescinded this comment, citing the University-wide mandate to accommodate students affected by Harvey. 

The student later received information that his attorney could not make the new hearing date. He requested the hearing be rescheduled once more. He says the hearing officer told him no. This decision — although technically allowable by UT’s procedure — made it so the student was unable to have his attorney present with him at his Title IX hearing.

According to the respondent, the officer began to treat him as if he has already been found guilty from the beginning of the hearing. These actions are not technically violations of UT’s code in Chapter 11. After all, in the description of a hearing officer’s duties (11- 601) there is nothing that explicitly requires the officer to act in an impartial way.

At one point on a copy of the hearing record obtained by The Daily Texan, a UT investigator brings up the student’s concealed carry permit, although his colleague later states this fact is nowhere in the previously agreed upon evidence for the hearing. When the student brings up the same issue in the context of his own defense, the hearing officer interrupts him and rules it irrelevant.

“There’s not a direct definition (of relevancy),” said Andel Fils-Aime, the UT director for student conduct and academic integrity, in relation to the institutional rules. “In many respects we really rely on the dean of students office to make sure we’re bringing relevant information to be considered for the specific violation or incident.”  

But the hearing officer relying on the investigator’s definition of relevance is like a judge relying only on the prosecutor to tell them what is and isn’t relevant evidence to a case. 

In another interaction, the hearing officer reportedly encouraged the respondent to see the issue from the complainant’s point of view. While the student narrated his own perspective of an interaction between himself and the complainant, the hearing officer reportedly interrupted him, allowing the complainant to insert her own testimony. 

This type of behavioral modification belongs in a therapist’s office. In an adjudicative setting, it is completely unacceptable for the person leading the proceedings to intervene in a way that could affect the case the student is trying to make for themselves, whether wrong or right.

According to Fils-Aime, UT is working hard to create representation and fairness in its student conduct process. There’s no doubt this work is important and laudable. But, when a system lacks a strong foundation, there is no guarantee that the outcome will live up to the goals of the process. 

According to Krista Anderson, associate vice president and Title IX Coordinator, UT is working toward a more fair system. This year, the hearing officers who oversee Title IX cases completed three days of training with a specific focus on the investigation process. Last year, their training was only one day. 

But extra training is not enough. None of the hearing officer’s actions in this case can be considered direct infringements on UT’s code. In order to maintain due process for every student, the code should be amended so actions like these are not allowed. 

It’s time to take a look at the overall construction of our disciplinary process and assess how UT’s current procedure can affect whether or not a student gets a fair shot at telling their side of the story.

MacLean is a geography and advertising senior from Austin.